Matters of Opinion
The Law
Letters or memorandums which are matters of opinion in personnel files or students’ cumulative files.
Commentary
This exception is aimed at protecting documents in an agency’s personnel or student files that contain subjective rather than factual information about particular individuals. As the Supreme Court explained regarding materials in an employee’s file:
The Legislature quite obviously anticipated that there would be critical material and adverse opinions in letters of reference, in documents concerning disciplinary action, and promotions and in various other opinion information that might have no foundation in fact but, if released for public view, could be seriously damaging to an employee.
Newsome, 90 N.M. at 795. As with the exception for medical records, the Newsome case broadly interpreted this exception’s coverage to include documents concerning infractions and disciplinary action, personnel evaluations, opinions as to whether a person would be re-hired or as to why an applicant was not hired, and other matters of opinion. A more recent case similarly interpreted the exception to cover matters of opinion related to the working relationship between an employer and employee such as internal evaluations; disciplinary reports or documentation; promotion, demotion or termination information; and performance assessments. See Cox v. New Mexico Dep’t of Public Safety, 148 N.M. 934, 939, 242 P.3d 501 (Ct. App. 2010). That case also makes clear that unless they relate to the employee’s working relationship with his or her employer, matters of opinion are not protected simply because they are kept in the employee’s personnel file.
Example 9:
The sheriff’s office received a complaint from a citizen regarding what she perceived as misconduct by the deputy during a routine traffic stop. The complaint is placed in the deputy’s personnel file. A reporter for a news blog asks to inspect and copy the complaint. Although maintained in the deputy’s personnel file, the complaint is not a matter of opinion exempt from disclosure. The complaint came from a member of the public and related to her interaction with the deputy. The complaint was not generated by the sheriff or at the sheriff’s request in connection with the sheriff and deputy’s employment relationship. Accordingly, the sheriff’s office must make the complaint available to the reporter for inspection and copying.
Commentary
This exception extends only to information that is a matter of opinion. Factual information or other public information is not protected merely because it is kept in employee or student files.
Example 10:
A city employee who tends to get into trouble with her supervisor has, as a result, several letters of reprimand in her personnel file. These letters, as well as her annual evaluations, are not subject to disclosure. However, factual information in the file concerning salary, annual leave or conflicts of interest is not similarly protected.
Example 11:
A newspaper reporter interviewed the warden and a spokesperson for a state correctional institution and learned that five night shift employees had been terminated after testing positive for marijuana. The reporter requested permission to review the personnel files of the five employees with the aim of learning their identity. The correctional institution is not required to provide access to the files because, under these facts, where the details about the disciplinary measures and other circumstances regarding the discipline of the employees had already become public, divulgence of the former employees’ identities would compromise the privilege against disclosure of disciplinary matters protected by the Act. Under most circumstances, however, the bare fact that a specific employee has been terminated would not be considered confidential information.
Commentary
Requested documents that contain significant factual information in addition to opinion should be provided with the opinion information blocked out or otherwise redacted. The presence of protected opinion information in a document does not exempt the remainder of the document from inspection. Job applications and applicant resumes are not matters of opinion and should be provided upon request. With respect to student files, information not protected by this exception may otherwise be covered by the protection granted to student records under federal law. (See discussion in Chapter III, Section B.9.b of this Guide regarding the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g.